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2017 DIGILAW 921 (ALL)

DINESH KUMAR SINGH v. COMMISSIONER, FAIZABAD

2017-04-03

ANIL KUMAR

body2017
JUDGMENT : Anil Kumar, J. Heard Sri Prashant Singh Atal, learned counsel for the petitioner, Sri Neeraj Chaurasia, learned Standing Counsel for opposite parties and perused the record. By means of present writ petition, petitioner has challenged the order dated 25.10.2012 (Annexure No. 2) passed by opposite party No. 2/District Magistrate, Sultanpur thereby cancelling the arm license of the petitioner and the order dated 28.5.2014 (Annexure No. 1) passed by opposite party No. 1/Commissioner, Faizabad Division, Faizabad by which petitioner's appeal was dismissed. 2. Facts, in brief, of the present case are that on 26.6.2012 a show cause notice was issued to the petitioner under section 17(3) of the Arms Act (herein after referred to as 'Act') on the basis of letter dated 22.6.2012 of Superintendent of Police Sultanpur along with report submitted by S.H.O. Chanda, Sulanpur that 6.8.2012 petitioner had misused his licensing pistol and fired at Sri Aniruddah Singh so in view of the said fact an FIR was lodged and on the basis of which a case crime No. 264 of 2012 under Section 307 IPC has been registered against him. 3. After receiving the show cause notice, petitioner submitted his reply inter alia stating therein that arm license has been granted to him in order to protect his life because he is the agent of Life Insurance Corporation of India and National Insurance Company Limited. He further submits that neighbour of the petitioner trying to construct boundary wall so father of the petitioner has raised objection on 21.4.2012 for constructing the boundary wall and made a complaint against Sri Aniruddah Singh but no action has been taken by the police-station concerned. However a proceedings under Section 107/116 has also been started against the petitioner. Sri Aniruddah Singh has lodged a false FIR against the petitioner on the basis of which Case crime No. 264 of 2012 has been registered against him. It is also stated in his reply that he had neither misused the licensing pistol nor had fired at Sri Aniruddah Singh and he has no criminal history rather he has been falsely implicated in forge FIR. Sri Aniruddah Singh has also filed an objection in the matter in question. 4. By order dated 25.10.2012, opposite party No.2/Licensing Authority/District Magistrate, Sultanpur had cancelled the petitioner's arm license on the ground that he has misused the arms and in this regard a criminal case no. Sri Aniruddah Singh has also filed an objection in the matter in question. 4. By order dated 25.10.2012, opposite party No.2/Licensing Authority/District Magistrate, Sultanpur had cancelled the petitioner's arm license on the ground that he has misused the arms and in this regard a criminal case no. 264 of 2012 was registered so there is breach of public peace and safety. The order dated 25.10.2012 passed by opposite party No. 2 has been challenged by the petitioner by filing Appeal No. 174/ Sultanpur (Dinesh Kumar Singh v. State of U.P. and others) under section 18 of the Arms Act, dismissed by order dated 28.5.2014 by Commissioner, Faizabad Division, Faizabad. 5. Learned counsel for the petitioner while challenging the impugned order submits that merely pendency of criminal case cannot be a ground for cancelling the arm license. It is further submitted that in the said matter petitioner was not involved and has not used his gun in the said criminal case and he has been falsely implicated in criminal case due to enmity and Aniruddah Singh on whose behalf FIR was lodged, was annoyed from the father of the petitioner, so there is no breach of public peace and safety in the matter in issue as such the order dated 25.10.2012 (Annexure No. 2) passed by opposite party No. 2 thereby cancelling the petitioner's arm license is contrary to law liable to be set aside. 6. It is further submitted that order dated 28.5.2014 passed by opposite party No. 1/Commissioner, Faizabad Division, Faizabad is also contrary to law as no adequate opportunity has been given by the appellate authority to put forward his case and passed an order on the ground that he had misused the arm, so the order dated 28.5.2014 passed by opposite party No. 1 liable to be set aside. 7. Learned Standing Counsel while defending the impugned orders submits that on the basis of criminal case and the material on record, opposite party No. 2/licensing authority came to the conclusion that there is breach of public peace and safety and by invoking the provisions of section 17(3) of the Act, so the said authority had cancelled the petitioner's arm license. 8. It is further submitted by learned Standing Counsel that it is the discretion of licensing authority to cancel the arm license of a person if he found that there is breach of public peace and safety. 8. It is further submitted by learned Standing Counsel that it is the discretion of licensing authority to cancel the arm license of a person if he found that there is breach of public peace and safety. In the present case, opposite party No. 2 came to the conclusion that there is breach of public peace and safety so he cancelled the petitioner's arm license by order dated 25.10.2012, which was upheld by the appellate authority/opposite party No. 1 by order dated 28.5.2014, so there is no illegality or infirmity in the impugned order and the writ petition filed by the petitioner liable to be dismissed. 9. The core question which has to be decided in the present case is to the effect that mere involving of a criminal case or pendency of criminal case, can be a ground for cancellation of arm license . The said point has been dealt with by a Division Bench of this Court reported in (1978) AWC, 122 Sheo Prasad Mishra v. District Magistrate. The Division Bench relied upon the earlier decision of another Division Bench of this Court in the case of Masi Uddin v. Commissioner, Allahabad, (1972) ALJ 573, wherein it has been held:- "A licence may be cancelled, inter-alia, on the ground that it is "necessary for the security of public peace or for public safety, to do so. The District Magistrate has not recorded a finding that it was necessary for the security of the public peace or for public safety to revoke the licence. The mere existence of enmity between a licencee and another person would not establish the "necessary" connection with security of the public peace or public safety. In the case before us also the District Magistrate has not recorded any finding that it was necessary to cancel the licence for the security of public peace or for public safety. All that he has done is to have referred to some applications and reports lodged against the petitioner. The mere fact that some reports had been lodged against the petitioner could not form basis for cancelling the licence. The order passed by the District Magistrate and that passed by the Commissioner cannot, therefore, be upheld on the basis of anything contained in Section 17(3)(b) of the Act." 10. The mere fact that some reports had been lodged against the petitioner could not form basis for cancelling the licence. The order passed by the District Magistrate and that passed by the Commissioner cannot, therefore, be upheld on the basis of anything contained in Section 17(3)(b) of the Act." 10. In 2004 (1) JIC 507 Bhagwan Das v. Commissioner, Agra Division, Agra this Court has held that once the licencee has been acquitted, even if it is assumed to be a ground justifying cancellation, the same is no more in existence. 11. In view of the settled proposition of law mere pendency of criminal case, cannot be a ground for cancelling the arm license of the petitioner. 12. So far as the findings given by licensing authority/District Magistrate, Sultanpur that during the pendency of criminal case there is a breach of public peace and safety in the matter in question, is also not sustainable because the District Magistrate, Sultanpur has not given any positive findings in regard to the fact that in what circumstances there is breach of public peace and safety at large. In this regard, this Court in the case of Rajendra Singh v. Commissioner Lucknow Division, Lucknow and others, 2011 (29) LCD 1041 has held that "Public Peace" or Public Safety" do not mean ordinary disturbance of law and order public safety means safety of the public at large and no safety of few persons only. Before passing of the order in exercise of power conferred under Section 17(3) of the Act the Licensing Authority is under an obligation to apply his mind to the question as to whether there was eminent danger to public peace and safety involved in the case. 13. For the foregoing reasons, the writ petition is allowed. The order dated 25.10.2012 (Annexure No. 2) passed by opposite party No. 2/District Magistrate, Sultanpur and the order dated 28.5.2014 (Annexure No. 1) passed by opposite party No. 1/Commissioner, Faizabad Division, Faizabad are set aside and the opposite party No. 2/ District Magistrate, Sultanpur is directed to decide the matter a fresh expeditiously after giving due opportunity of hearing to the parties concerned.